The Legal Beat
My Last Words On Kennedy and Volokh’s Use Of Racial Slurs In The Law School Classroom
Posted on Tuesday May 11, 2021
Let me catch you up, in case you’re wondering.
Professors Kennedy and Volokh (“the Authors”) wrote an article advocating for use of racial slurs in the classroom.
I wrote a blog post on Above the Law commenting on the article.
The Authors responded on Professor Volokh’s blog.
I responded to that here, noting that they didn’t really address any of my concerns.
That should be the end of it, unless and until they proffer some evidence of value in uttering racial slurs. However, I received several messages with questions. So, I do want to make some clarifications, however, to my own posts in light of comments and questions I’ve received along the way.
For purposes of the discussion, I will continue to use the “Atomic Bomb” as a proxy for the word that Professor Volokh so desperately wishes to say in class (and has).
Are You Calling Volokh Racist?
I don’t mean to suggest that Professor Volokh gets his jollies from saying the word. I mean, he might. I don’t know him, something I share with the students who might hear him utter the word in his classes. My concern is that other professors get their jollies from saying the “Atomic Bomb.” The Authors’ position does not account for the blurring of those intentions. Professor Volokh might be a staunch free speech advocate. But his free speech is another professor’s opportunity to be racist. And students will not be able to tell the difference. Nor should they be required to. My arguments are not just about Professor Volokh. The Authors’ arguments impact upon the teacher, the student, the institution, and education generally.
But we should never lose sight of this: Racists like to say the “Atomic Bomb.” It’s a favorite among committers of hate crimes and racial violence, for example. Just like people who enjoy doing Nazi salutes tend to be Nazis. Context matters and so does history. You can’t just tell the students to suspend reality and say, “As I do this Nazi salute, keep in mind I’m not a Nazi.” Then why are you doing the damned salute? For pedagogical purposes? RIIIIIIIIIGHT.
What about other slurs other than the “Atomic Bomb?”
I’ll confess I’m out of my lane here. But my take is that there are degrees, with some being stronger than others. The Authors recognize this with the “Atomic Bomb” reference. But I’m not at all trusting of law professors regarding nuance. As I said, context matters.
As an example, one comment I received asked about the “Bureau of Indian Affairs.” My response: If I were teaching administrative law, and a case involved the BIA, I would say “BIA.” In short, I would be weighing the value versus the cost. If I were teaching a course on Native American Law & Policy, a class I’m not at all equipped to teach, I would discuss the origin of the BIA and its history. After that, I doubt I would have to say its name 126 times — or even more than once. I might say something like, “I will hereafter refer to it as BIA, perhaps the most woefully misnamed agency in the United States.”
What About Using Racial Slurs or Proxies in Final Exams?
A few commentators asked about the curious case of a Civ Pro professor using proxies for the Atomic Bomb and other slurs on a final exam. You can read about it here.
And here, it is again a question of cost and benefit. I’ve taken employment discrimination, and those words were not uttered in class once. And yet somehow the exam I took was on race discrimination, and I could still apply the tools I was taught in the course. Granted, the areas of law where I think one is most likely to encounter racial slurs are in criminal law and employment discrimination, but I have yet to hear the benefit of uttering those words in class. Again, the students KNOW the words and that racists say them.
But what about using proxies for the slurs? Again, context matters. In this instance, proxies are less offensive alternatives to the full slur. However, the context was a civ pro exam. I am sure the professor could have used an exam that did not contain the proxy (as I have in many classes). If the professor were teaching employment discrimination, then what’s the value? Pop Quiz: What information is lost along this sequence of words: “Atomic bomb,” “N-Word,” or “very bad racial slur offensive to Black men and women”? To me, they all communicate the same thing, but they are gradations of offensiveness. Don’t believe me? Then what the [expletive deleted] is wrong with you? See what I did there? Did you figure out what expletive was deleted? Students aren’t stupid.
Why Do Some Words Only Belong to Some Groups?
The Authors and several commentators were upset about my reference to words belonging exclusively to some groups: “As Professor Ta-Nehisi Coates points out, not all words belong to everyone.” It’s uncomfortable for some that they cannot utter the words that have been used to hurt others. I’m not sure why.
That’s the point. White people can’t say the “Atomic Bomb.” The ownership of the word is taken away from the offending party and is established as a symbol of empowerment. Anyone who has studied deconstruction understands this. The whole point is to take the word away from those that have wielded it for violence and oppression. That’s why it matters who says it. And to say it as a white person communicates that violence, no matter how much exculpatory language you use with it.
Regardless, there’s trepidation about the argument about some words belonging to some groups. I don’t think it is necessary for my argument, although I don’t think the point should be controversial. I added it because I leave the possibility open for courses where it might matter substantially: For example, a Women’s Studies course examining the etymology of misogynistic words. I’m more inclined not to have racial slurs uttered in the law school classroom, and particularly in required courses. I have taught controversial cases that involve race, gender, sexual orientation, and socio-economic status without need for the racial slurs. But I’m not an undergraduate professor, and I cannot speak beyond the fields of legal education.
Why Are You Spending So Much Time On This?
Because there are a group of law professors out there that seem to love to say the “Atomic Bomb.” And they know better. For everyone one of them, there are others considering it. They sit alongside other professors who have shown utter contempt for their Black students.
Some have told me I’m doing disservice by giving the Authors the attention they seek. Maybe, but not in the way they are seeking it.
The more someone vigorously defends their strong desire to utter “Atomic Bomb” in the classroom, there are consequences. What if it catches on? What if everyone at your school suddenly desires to do so? Network effects can be positive or negative, my dear Authors. Another issue the Authors ignore. Professor Volokh isn’t arguing for special dispensation. The Authors are arguing that racial slurs should be uttered. I imagine they fancy themselves the drill sergeant in “Full Metal Jacket,” without consideration of what happens to the recruits as a result.
Also, the Authors work purports to be “scholarship” from two professors at “prestigious” law schools. Yet somehow, the Authors offer no discernable additional benefits to uttering “Atomic Bomb,” no matter how much Professors Kennedy and Volokh assert it. They offer no asserted differences between the value conveyed by uttering the “Atomic Bomb” and a less offensive alternative. And they ignore the costs of uttering the “Atomic Bomb” to the student, the faculty member uttering it, and to the learning process. They ignore the network effects should their idea catch on.
Perhaps that is the real reason why I’m spending time on this: The Authors’ article purports to be scholarship, presumably contributing to the legal education literature. To the extent they ignore pretty much everything and continue to make large unverifiable assumptions, I have my doubts.
LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg). Email him at [email protected].